Hans Raj Puri vs Haryana State

G.R. Majithia, J.—This judgment will dispose of R. S. As No 1455 of 1987 and 2179 of 1987.

The undisputed facts are that the Plaintiff joined as a Clerk in the Education Department of the undivided State of Punjab in the year 1948. On the re-organisation of the Punjab State, he was allocated as Assistant in the Education Department of the Haryana State. He was confirmed as Assistant (Sub Office) with effect from 26.8.1966. He was promoted as a Head Clerk in the Government College Kalka when he was placed under suspension vide order dated 25.9.1981. Statement of charges was served upon him vide order dated 29.1.1982 and the same reads as under:

While working as Head Clerk in the Govt. College Kalka during the year 1981, Shri Hans Raj Puri committed the following acts of omission and commissions and is charged as under:

That ho wilfully remained absent from duty for the period from 17.8.81 to 9.9.81, in violation of the provision of Rule 8.15 and 8.16 of C. S. R. Vol. I Part 1.

2 That he tried to cheat the Principal Govt. College, Kalka, by mancouvring to send his back dated leave application for 4th and 5th September, 1981, through a clerk of the local Employment Exchange, Kalka.

The above lapses on his part constitute grave misconduct and derelication of his duties rendering him liable to disciplinary action

The Director of School Education, Haryana, vide order No. 5/101-81 ME(2) Dated, February 19, 1982, ordered reinstatement of the Plaintiff without prejudice to the Departmental action that may be taken against him. On April 12, 1982, an order was issued by the Director of School Education, Haryana, stating as under:

The charge-sheet issued to Sh. Hans Raj Puri, Head Clerk, office of S. D. E. O. Palwal vide this office No. 5/101-81-ME (2) dated 29.1.1982, is hereby withdrawn.

On April 19, 1982, an order was issued by the Director of School Education ordering of compulsory retirement of the Plaintiff

The order of compulsory retirement was challenged in Case No. 248 instituted on December 2, 1983 giving rise to Regular Second Appeal No. 1455 of 1987.

The Defendant-State justified the order of compulsory retirement on the ground that on September 3, 1968, instructions were issued to the effect that only those employees with good or better record, that is categorised higher than average should be retained in service beyond 55 years of, age. It was further pleaded that only those officials could be retained in service beyond 55 years if 60 per cent out of the Annual Confidential Reports immediately proceeding 10 years were above average.

In suit No. 249 instituted on December 2, 1983 giving rise to Regular Second Appeal No 2179 of 1987 orders contained in letters dated December 1, 1980, August 28, 1981 and March 19, 1981, respectively debarring the Plaintiff from crossing the efficiency bar was challen-ed. He also sought mandatory injunction against the Respondents to allow him to cross efficiency bar w e.f. May 1, 1979.

The Respondents defended the action and inter alia pleaded that the case of the Plaintiff for crossing efficiency bar was considered in 1980 but in view of the Government instructions contained in letter dated January 29, 1974, he was not allowed to cross the efficiency bar. Record pertaining to the years 1971-72 to 1978*79 was scrutinised and six reports out of eight were found to be average and only two reports were good. The Plaintiff''s case was considered every year but he was not fulfiling requisite qualifications and was not allowed to cross efficiency bar. In view of the Annual Confidential Reports of the Plaintiff, he was compulsorily retired w.e f. August 5, 1982.

From the pleadings of the parties, the following issues were framed:

Whether the Plaintiff is entitled to the declaration prayed for? OPP.

Relief.

The Courts below dismissed the suit holding that the order of complusory retirement cannot be challenged on the ground that any right of the Plaintiff has been violated The Courts below further found that 60 per cent of the Annual Confidential Reports of the Plaintiff were either average or below average and the average report although not conveyed to the Plaintiff could be taken into consideration for not retaining him in service on attaining the age of 55 years.

The view taken by the learned Courts below is untenable at law. Summary of service record of Plaintiff was produced on record and he was graded as under:

Year

Grading

Remarks

1971-72

A (V. Good)

�

1972-73

Average

Ment imbalance

1973-74

Average.

Not possibe to perform

official duties satisfactorily

Contains adverse entries.

coveyed on 27.9.74.

1974-75

Average

1975-76

Average. No hard

working.

Contains adverse remarks.

(not conveyed).

1977-78

Good

Warning on personal file.

1978-79

Average

Contains adverse remarks

Conveyed. Not interest-

ed in working. Quarrel-

some. On seat less sit.

1979-80

A (V. Good)

�

1980-81

Outstanding

Suspended on 25.9.81 and

reinstated on 19.2.82.

Charge sheet served on

29.1.82.

A perusal of the summary of service record indicates that in the year 1975-76, an adverse entry was recorded in the service record but it was not conveyed. In the year 1978-79, again grading is average. Adverse entry is stated to have been conveyed. The Plaintiff appeared as P.W. 1 at the trial and deposed that the adverse entry in the 1978-79 was expunged and for the years 1972-73, 1974-75, 19-5-76 and 1976-77 were never conveyed. His statement was not challenged in cross examination.

It is well established rule of evidence that a party should put to each of his opponent''s witness so much of his case as concerns that particular witness. If no such questions are put the Court presumes that the witness account has been accepted. If it is intended to suggest that the witness was not speaking truth upon a particular point, his attention must first be directed to that effect by cross-examination so that he may have an opportunity of giving explanation. No material was produced on record by the Defendant to prove that adverse entry in the years mentioned supra were conveyed to the Plaintiff.

D W 1 Shri Agya Ram Batra, an Assistant in the office of Director Higher Education, Haryana, was examined by the State as its witness. In his cross-examination, he stated as under:

(i) It is correct that that Annual Confidential Reports of the Plaintiff pertaining to the years 1972-73, 1973-74 and 1976-77 were not conveyed to him.

(ii) The remarks with regard to the integrity in the Annual Confidential Report for the year 1978-79, were expunged. How-ever, remaining remarks are in existence

(iii) I have seen instructions issued by the Government and the photo copy of which is Exhibit P/16. It is correct that if average report of a person is not conveyed then it cannot be taken into account. It has been farther clarified in the instructions that if any action has to be taken on the average reports, then the same must be conveyed.

Thus, the version of the Plaintiff that the adverse entries were never communicated to him was accepted as correct by D.W. 1 Shri Agya Ram Batra, an official of the Department.

Even otherwise instructions were issued on August 16, 1983 by the Chief Secretary, Government of Haryana, in which it was mentioned that the assessment of work of official as "Average" without any other qualifying words should not be treated as adverse and need not be communicated to him. In the light of these instructions, the average reports cannot be treated to be adverse. If the summary of the service record of the Plaintiff is considered in the light of the instructions, none of the entries in which the Plaintiff has been graded as average could be treated as adverse.

In Gurdial Singh Fijji Vs. State of Punjab and Others, their Lordships of the Supreme Court were pleased to observe as under:

The principle is well settled that in accordance with the rules of natural justice, an average report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report.

Thus, none of the entries could be taken into consideration for forming the requisite opinion to retire pre maturely the Appellant from service. I have examined the service record of the Appellant. During the last five years of his service, the Appellant has not earned any adverse entry reflecting upon his work and conduct. The adverse entry for the year 1978-79 was expunged as admitted by D W. 1 Shri Agya Ram Batra.

In Baldev Raj Chadha v. Union of India and Ors. 1988 (1) S. C. R. 430, the Apex Court was pleased to observe that if an officer had earned no adverse entry at least for five years immediately before the compulsory retirement, he cannot be cashiered on the score that long years ago, his pre-formance had been poor. In Brij Mohan Singh Chopra v. State of Punjab 1987 (2) S. L. R. 54 their Lordships of the Supreme Court were pleased to reaffirm the view taken in Baldev Raj Chadha''s case (supra) and observed as under:

Though the entire service record of an employee may be considered while considering the question of his premature retirement hut if the service record of the last 10 years of his service do not indicate any efficiency in his work and conduct it would be unjust and unreasonable to retire him prematurely on the basis of entries which may have been awarded to him prior to that period. In Baldev Raj Chadha v. Union of India and Ors. (supra) this Court held that if an officer had earned no adverse entries at least for 5 years immediately before the compulsory retirement, be cannot be cashiered on the score that long years ago his performance had been poor. It appears that the State of Punjab realised that premature retirement of an employee on the basis of the entire service record which may include stale entry would be unreasonable and it therefore issued Govt order on June 22, 1981 directing that under the Punjab Civil Services (Premature Retirement) Rules 1975 it would not be desirable to scrutinize the entire service record of an employee for premature retirement and premature retirement should not be ordered if during the last 5 years the work and conduct of the employee have been good. This direction was no doubt issued after the Appellant was prematurely retired in March 1980 but nonethless it is apparent that the Govt, had changed its policy in accordance with the decisions of this Court and it had taken a decision not to retire a Govt, servant if his service record for the last five years did not contain any adverse remarks. The Appellant had not earned any adverse remarks during the last 5 years of service, but on the other hand he had earned ''good'' and ''very good'' entries during those years. In this view the Government''s decision to retire the Appellant pre maturely in exercise of the power under Rule 3 is not sustainable in law.

In the light of the above, I am satisfied that there was no material before the Defendant to form opinion that the Appellant''s premature retirement was in the public interest.

There is yet another aspect of the matter. The Appellant was charge sheeted on January 29, 1982. The accusation appears to be quite serious. For the reasons best known to the State, the suspension order dated September 25, 1981 was revoked on February 18, 1982 and on April 12, 1982, charge sheet issued vide office Memo No. 5/101-81-ME (2) dated January 29, 1982 was withdrawn, and on April 19, 1982 the order of compulsory retirement was issued. The Plaintiff''s assertion that he has been retired as a measure of punishment stands well established. It is beyond dispute that the power to retire government servant compulsorily in public interest in terms of rules governing his conditions of service is absolute provided the authority concerned formed the opinion in bona fide manner to the effect that it is necessary to pass an order in public interest. In case the order is passed on collateral grounds or is otherwise arbitrary or punitive in the given state of facts, it is liable to be struck down by the Courts. In the instant case, the manner in which order of suspension was recalled; charge sheet withdrawn and compulsory retirement ordered is a pointer to the conclusion that it was a colourable exercise of power. The order of compulsory retirement is, to my mind, not bonafide and the order, although, appears to be in public interest but is punitive in nature in the given state of facts and I srike down the same on this ground too.

For the reasons stated above I allow R.S.A. No. 1455 of 1987. I set aside the judgment and decree of the learned Additional District Judge dated January 22, 1986 and grant the declaration as prayed for. The order of compulsory retirement is set aside The Plaintiff will be treated as being in service, without break till the date of his superannuation. He will be entitled to his salary, allowancess and such other benefits, as may be admissible to him under the rules including the benefits of encashment of leave etc. The arrears of salary and other allowances shall be paid to him with interest at the rate of 12% per annum from the date these became due till payment.

In R. S. A. No. 2179 of 1987, the Appellant has challenged the order issued by the State Government vide which he was debarred from crossing the efficiency bar. I have held in the earlier part of the judgment that the entries which are graded as ''average'' or which are alleged to be ''adverse'' but not communicated could not be taken into consideration for forming an opinion that it is in public interest to com pulsorily retire the Plaintiff. For the same reasons these entries could not be pressed into service for not allowing the Plaintiff to cross the efficiency bar. Orders contained in letters dated December 1, 1980, August 28, 1981 and March 19, 1981 stopping the Plaintiff from crossing efficiency bar w.e.f 1.5.1979 and 1.5.1980, are set aside and grant the declaration and injunction as prayed for. I allow the appeal and set aside the judgment and decree under challenge. However, I leave parties to bear their own costs.